Do lawmakers really want to get to the bottom of the Coconut Road earmark? It looks more and more doubtful by the minute. The story of Coconut Road is one of those earmark stories where a congressman, Alaska Rep. Don Young, inserted an earmark for a campaign contributor in Florida for a project that the local community, in Florida mind you, not Alaska, did not want. Even worse, the earmark was inserted after the transportation bill it was attached to had passed Congress. Bills can’t be signed by the President if they’ve been edited after passage. That’s against the rules, laws, and the Constitution. So yesterday, lawmakers in the Senate decided they were going to pursue action against those who inserted the earmark language after bill passage.
The Senate considered two proposals, one to create a joint House-Senate investigative committee authored by Sen. Tom Coburn, the other to direct the Justice Department to open an investigation pushed by Sen. Barbara Boxer. In the end, the Boxer plan won as many Democrats felt that the Senate initiating an probe of the House would create constitutional issues, potentially violating the Speech and Debate Clause. While I cannot know if supporters of the Boxer plan actually desire to get to the bottom of this issue, the path they took yesterday shows a lack of seriousness, or a lack of understanding of recent law. By referring to the Justice Department for an investigation, the Senate has not escaped problems of Speech and Debate, they have waded further into this constitutional morass.
Congress only needs to recall the FBI raid on Rep. William Jefferson’s congressional office back in 2006. When the FBI entered the office and took documents, both Nancy Pelosi and then-Speaker Dennis Hastert denounced the raid as a violation of the Speech and Debate clause and the separation of powers. Jefferson sued the Justice Department in court over their violation of these constitutional barriers meant to protect the independence of the branches. Guess what? Jefferson won his case in Federal Court and the Supreme Court refused to take the government’s appeal. In accordance with the ruling, the executive branch cannot obtain materials from congressional offices without prior consent. No amount of subpoenas will matter. While this does make congressional offices into potential Chriastiania’s for corruption, it is the law as determined by the courts.
So, how can the Justice Department investigate the office of Rep. Don Young if he refuses to turn over documents? They can’t. Thus, I return to my initial question: are they really serious about investigating Coconut Road? And in referring the investigation to the Justice Department is not Congress deferring essential responsibilities to the executive branch?
The Point of Order blog, which explains the Speech and Debate issues in more depth, gets a bit harsh over the lack of self-respect Congress apparently has for itself:
Leaving the legal technicalities aside, it is difficult to imagine what could be more offensive to separation of powers generally and the Speech or Debate Clause in particular than for the Congress to call upon the executive branch to investigate the very core of the legislative process, namely how a bill is physically prepared for enrollment. It is astounding that the same Congress with one breath can decry the “politicization” of the Department of Justice and, with the other, outsource its own constitutional responsibilities to that Department.
The only real path to a full investigation would be if the House Ethics Committee opened an active probe into the matter. Speaker Pelosi, like a child dipping a toe in cold swimming pool, issued this statement, "I think that’s something the ethics committee should look at." Someone in the House needs to step up and file a complaint as they will not act on the multiple complaints filed by CREW, or any other outside group.